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4. W^aen made in good faith, for the purpose of saving
human life, or relieving another vessel in distress.

History: Enacted March 21, 1872.

As to effect of deviation by necessity upon marine policy, see
58 A. D. 673.

As to many miscellaneous matters as to insiirance, see notes
§§ 414, 2527, ante.

As to when another ship may be procured in which to for-
ward cargo, and liability of underwriter continue, see Kerr's
Cyc. C. C. § 2695, note.

§ 2696. WHEN IMPROPER. Every deviation not specified
in the last section is improper.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2697. DEVIATION EXONERATES THE INSURER, An

insurer is not liable for any loss happening to a thing insured
subsequently to an improper deviation.

History: Enacted March 21, 1872.

66 C. 294, 297, 5 P. 478 (applied).
See Kerr's Cyc. C. C. § 2636 and note.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.



1375



§§ 2701-2703 CIVIL CODE. [Div.III,Pt.IV

ARTICLE VII.
LOSS.

§ 2701. Total and partial loss.

§ 2702. Partial loss.

§ 2703. Actual and constructive total loss.

§ 2704. Actual total loss, what.

§ 2705. Constructive total loss.

§ 2706. Presumed actual loss.

§ 2707. Insurance on cargo, etc., when voyage is. broken up.

§ 2708. Cost of reshipment, etc.

§ 2709. "When insured is entitled to payment.

§ 2710. Abandonment of goods on insurance of profits [re-
pealed].

§ 2711. Average loss.

§ 2712. Insurance against total loss.

§ 2701. TOTAL AND PARTIAL LOSS. A loss may be either
total or partial.

History: Enacted March 21, 1872.

As to definition of constructive total loss, see post § 2705.

As to definition of loss actual or constructive, see post § 2704.

As to goods stowed on deck and jettisoned, when covered by
marine policy, see 86 A. D. 500.

As to liability under a marine policy for injuries caused by
collision to another vessel by insured vessel, see 54 A. D. 787.

As to loss due to neglect to employ a pilot, see 33 A. D. 599.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to total loss either actual or constructive, see post § 2703.

§ 2702. PARTIAL LOSS. Every loss which is not total is
partial.

Hi-story: Enacted March 21, 1872.

As to liability on partial loss, see post § 2737.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to one third new for old, see post § 2746.

§ 2703. ACTUAL AND CONSTRUCTIVE TOTAL LOSS. A

total loss may be either actual or constructive.

History: Enacted March 21, 1872.
1376



Tit.XI,ch.II,art.VII.] total LOSS. §§2704-2707

As to definition of actual total loss, see post § 2704.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to when actual loss presumed, see post § 2706.

§2704. ACTUAL TOTAL LOSS, WHAT. An actual total
loss is caused by:

1. A total destruction of the thing insured;

2. The loss of the thing by sinking, or by being broken up;

3. Any damage to the thing which renders it valueless to
the owner for the purposes for which he held it; or,

4. Any other event which entirely deprives the owner of
the possession, at the port of destination, of the thing insured.

History: Enacted March 21, 1872.

146 C. 279, 280, 79 P. 967 (applied — construction of contract —
constructive loss — actual total loss).

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2705. CO>'STKUCTIVE TOTAL LOSS. A constructive
total loss is one which gives to a person insured a right to
abandon, under section two thousand seven hundred and sev-
enteen.

History: Enacted March 21, 1872.

133 F. 636, 643 (no case for operation of doctrine of abandon-
ment).

As to abandonment for constructive total loss, see post §§ 2716
et seq.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2706. PKESFMED ACTUAL LOSS. An actual loss may
be presumed from the continued absence of a ship without
being heard of; and the length of time which is sufficient to
raise this presumption dei)ends on the circumstances of the
case.

Hi.s<<»ry: Enacti-d March 21, 1872.

§ 2707. I>SUKA>( E (►> C.VKG(K ETC., W1IE> VOYACJE IS
BROKEN UP. When a ship is prevented, at an intermediate
Kerr's C. C— 44 1377



§§ 2708-2711 CIVIL CODE. [Div.III.Pt.IV.

port, from completing the voyage, by the perils insured
against, the m'aster must make every exertion to procure, in
the same or a contiguous port, another ship, for the purpose
of conveying the cargo to its destination; and the liability of
a marine insurer thereon continues after they are thus
reshipped.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 258.

As to barratry of master and marines being insured against
in marine policy of insurance, see Kerr's Cyc. C. C. § 2707, note.

As to constructive total loss of cargo, see ante § 2616 subd. 4.

As to many miscellaneous matters as to insurance', see notes
§§ 414, 2527, ante.

§ 2708. COST OF RESHIPMENT, ETC. In addition to the
liability mentioned in the last section, a marine insurer is
bound for damages, expenses of discharging, storage, reship-
ment, extra freightage, and all other expenses incurred in
saving cargo reshipped pursuant to the last section, up to
the amount insured.

History: Enacted March 21, 1872.

§2709. WHEIV INSURED IS ENTITLED TO PAYMENT.

Upon an actual total loss, a person insured is entitled to pay-
ment without notice of abandonment.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2710. ABANDONMENT OF GOODS ON INSURANCE OF
PROFITS (repealed).

History: Enacted Marcli 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 258.

§2711. AVERAGE LOSS. Where it has been agreed that
an insurance upon a particular thing, or class of things, shall
be free from particular average, a marine insurer is not

1378



Tit.XI,ch.II,art.VII.] against total loss. § 2712

liable for auy particular average loss not depriving the
insured of the possession, at the port of destination, of the
whole of such thing, or class of things, even though it become
entirely worthless; but he is liable for his proportion of all
general average loss assessed upon the thing insured.

Himtory: Enacted March 21. 1872; amended March 30. 1874,
Code Amdts. 1873-4, p. 258.

92 C. 382, 387 (erroneously cited for § 2911), 28 P. 573, 575
(correct citation).

As to many iniscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2712. INSURANCE AG.VINST TOTAL LOSS. An insur-
ance confined in terms to an actual total loss, does not cover
a constructive total loss, but covers any loss which neces-
sarily results in depriving the insured of the possession, at
the port of destination, of the entire thing insured.

HIMory: Enacted Marcli 21, 1872: amended Marcli 30, 1S74.
Cod.' Amdts. 1873-4, p. 259.



1379



§§2716,2717 CIVIL CODE. [Div.III,Pt.IV.

ARTICLE VIII.

ABANDONMENT.

§ 2716. Abandonment, what.

§ 2717. When insured may abandon.

§ 2718. Must be unqualified.

§ 2719. When may be made.

§ 2720. Abandonment may be defeated.

§ 2721. How made.

§ 2722. Requisites of notice.

§ 2723. No otlier cause can be relied on.

§ 2724. Effect.

§ 2725. Waiver of formal abandonment.

§ 2726. Ag-ents of the insured become agents of the insurer.

§ 2727. Acceptance not necessary.

§ 2728. Acceptance conclusive.

§ 2729. Accepted abandonment, irrevocable.

§ 2730. Freig-htag-e, how affected by abandonment of ship.

§ 2731. Refusal to accept.

§ 2732. Omission to abandon.

§ 2716. ABANDONMENT, WHAT. Abandonment is the act
by which, after a constructive total loss, a person insured by
contract of marine insurance declares to the insurer that he
relinquishes to him his interest in the thing insured.

History: Enacted March 21, 1872.

As to definition of constructive total loss, see ante § 2705.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to requisites of abandonment, see post §§ 2718-2723.

§2717. WHEN INSURED MAY ABANDON. A person in-
sured by a contract of marine insurance may abandon the
thing insured, or any particular portion thereof separately
valued by the policy, or otherwise separately insured, and
recover for a total loss thereof, when the cause of the loss is
a peril insured against:

1. If more than half thereof in value is actually lost, or
would have to be expended to recover it from peril;

1380



Tit.XI,ch.II,art.VIII.] ABANDONMENT. §§2718.2719

2. If it is injured to such an extent as to reduce its value
more than one-half;

3. If the thing insured, being a ship, the contemplated voy-
age cannot be lawfully performed without incurring an
expense to the insured of more than half the value of the
thing abandoned, or without incurring a risk which a pru-
dent man would not take under the circumstances; or,

4. If the thing insured, being cargo or freightage, the voy-
age cannot be performed nor another ship procured by the
master, within a reasonable time and with reasonable dili-
gence, to forward the cargo, without incurring the like expense
or risk. But freightage cannot in any case be abandoned,
unless the ship is also abandoned.

HiMtory: Enacted March 21, 1872.

146 C. 279, 280, 79 P. 967 (subds. 3 and 4 applied — construc-
tion of contract — constructive loss — actual total loss).

As to how freightage affected by abandonment, see post
S 2730.

As to many miscellaneous matters as to Insurance, see notes
§§ 414, 2527, ante.

As to marine Insurance; riglit to abandon; time for abandon-
ment; notice' of; revocation of; acceptance and effect of; tech-
nical total loss, see 9 L. 831.

As to rule of one third new for old in cases of partial loss,
see post § 2746.

§2718. Ml'ST BE rNQlAMFIKI). An abandonment must
be neither partial nor conditional.

IllNtoryt Enacted Marcli 21, 1872.



§2719. >V1IE\ .MAY HE .MADE. An abandonment must be
made within a reasonable time after the Information of the
loss, and after the commencement of the voyage, and before
the party abandoning has information of its completion.

HiMtory: Enacted March 21. 1872.

As to effect of omitting to abandon, see post 5 2732.
As to many miscellaneous matters as to insurance, see notes
S$ 414. 2527, ante.

1381



§§ 2720-2725 CIVIL CODE. [Div.III,Pt.IV.

§ 2720. ABANDOIVMEKT MAY BE DEFEATED. Where the
information upon which an abandonment has been made
proves incorrect, or the thing insured was so far restored
when the abandonment was made that there was then in fact
no total loss, the abandonment becomes ineffectual.

History: Enacted March 21, 1872.

§2721. HOW MADE. Abandonment is made by giving no-
tice thereof to the insurer, which may be done orally, or in
writing.

History: Enacted March 21, 1872.

§2722. REQUISITES OF NOTICE. A notice of abandon-
ment must be explicit, and must specify the particular cause
of the abandonment, but need state only enough to show that
there is probable cause therefor, and need not be accompanied
with proof of interest or of loss.

History: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2723. NO OTHER CAUSE CAN BE RELIED ON. An

abandonment can be sustained only upon the cause specified
in the notice thereof.

History: Enacted March 21, 1872.

§ 2724. EFFECT. An abandonment is equivalent to a trans-
fer, by the insured, of his interest, to the insurer, with all the
chances of recovery and indemnity.

History: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to subrogation of insurer, see post § 2745.

§ 2725. WAIVER OF FORMAL ABANDONMENT. If a ma-
rine insurer pays for a loss as if it were an actual total loss,
he is entitled to whatever may remain of the thing insured, or

1382



Tit.XI,ch.II,art.VIII.] ACCEPTANCE. §§ 2726-2730

its proceeds or salvage, as if there had been a formal aban-
donment.

History: Enacted March 21, 1872.

§2726. AGEMS OF THE INSURED BECOME AGEXTS

OF THE IjVSURER. Upon an abandonment, acts done in good
faith by those who were agents of the insured in respect to
the thing insured, subsequent to the loss, are at the risk of
the insurer, and for his benefit.

History: Enacted March 21, 1872.

§2727. ACCEPTANCE NOT NECESSARY. An acceptance

of an abandonment is not necessary to the rights of the
insured, and is not to be presumed from the mere silence of
the insurer, upon hig receiving notice of abandonment.

History: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to refusal to accept abandonment, see post § 2731.

§2728. ACCEPTANCE CONCLUSIVE. The acceptance of
an abandonment, whether express or implied, is conclusive
upon the parties, and admits the loss and the sufficiency of
the abandonment.

Hieitory: Enacted March 21, 1872.

§2729. ACCEPTED ABANDONMENT, IRREVOCABLE. An

abandonment once made and accepted is irrevocable, unless
the ground upon which it was made proves to be unfounded.

History: Enacted March 21, 1872.

§2730. FREIGHTAGE, HOW AFFECTED BY ABANDON-
MENT OF SHIP. On an accepted abandonment of a ship,
freightage earned previous to the loss belongs to the insurer
thereof; but freightage subsequently earned belongs to the
insurer of the ship.

History: Enacted March 21, 1872.
1383



1I



§§ 2731, 2732 CIVIL CODE. [Div.III.Pt.IV.

As to abandonment of freightage, see ante § 2017 subd. 4.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2731. REFUSAL TO ACCEPT. If an insurer refuses to
accept a valid abandonment, he is liable as upon an actual
total loss, deducting from the amount any proceeds of the
thing insured which may have come to the hands of the
insured.

History: Enacted March 21, 1872.

As to acceptance not presumed from silence, see ante § 2727.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2732. OMISSIOJf TO ABANDON. If a person insured
omits to abandon, he may nevertheless recover his actual loss.

History: Enacted March 21, 1872.



1384



Tit.XI,ch.II,art.IX.] valuation— LOSS. §§ 2736, 2737



ARTICLE IX.

MEASURE OF INDEMNITY.

§ 2736. Valuation, when conclusive.

§ 2737. Partial loss.

§ 2738. Profits.

§ 2739. Valuation apportioned.

§ 2740. Valuation applied to profits.

§ 2741. Estimating loss under an open policy.

§ 2742. Arrival of thing damaged.

§ 2743. Labor and expenses.

§ 2744. General average.

§ 2745. Contribution.

§ 2746. One third new for old.

§2736. VALUATIOX, WHEN CONCLISIVE. A valuation
in a policy of marine insurance is conclusive between the par-
ties thereto in the adjustment of either a partial or total loss,
if the insured has some interest at risk, and there is no fraud
on his part; except that when a thing has been hypothecated
by bottomry or respondentia, before its insurance, and with-
out the knowledge of the person actually procuring the insur-
ance, he may show the real value. But a valuation fraudulent
in fact entitles the insurer to rescind the contract.

History: Enacted March 21, 1872.

133 F. 636, 643 (what does not change binding cliaracter of
valuation as fixed by terms of policy).

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to valuation of profits, see post § 2740.

As to valued policy of fire insurance, see post § 2756.

As to valued policy on freightage or cargo, see post § 2739.

§2737. PARTIAL LOSS. A marine insurer is liable upon
a partial loss, only for such proportion of the amount insured
by him as the loss bears to the value of the whole interest
of the insured in the property insured.

History: Enacted March 21, 1872.
1385



§§ 2738-2741 CIVIL CODE. [Div.III,Pt.IV.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to measure of indemnity in case of fire insurance, see post
§ 2756.

§ 2738. PROFITS. When profits are separately insured in
a contract of marine insurance, the insured is entitled to
recover, in case of loss, a proportion of such profits equiva-
lent to the proportion which the value of the property lost
bears to the value of the whole.

History: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527. ante.

As to valuation applied to profits, see post § 2740.

§ 2739. VALUATION APPORTIONED. In case of a valued
policy of marine insurance on freightage or cargo, if a part
only of the subject is exposed to risk, the valuation applies
only in proportion to such part.

History: Enacted March 21, 1872.

§2740. VALUATION APPLIED TO PROFITS. When
profits are valued and insured by a contract of marine insur-
ance, a loss of them is conclusively presumed from a loss of
the pi'operty out of which they were expected to arise, and
the valuation fixes their amount.

History: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to profits, see ante § 2738.

§2741. ESTIMATING LOSS UNDER AN OPEN POLICY.

In estimating a loss under an open policy of marine insur-
ance, the following rules are to be observed:

1. The value of a ship is its value at the beginning of the
risk, including all articles or charges which add to its per-
manent value, or which are necessary to prepare it for the
voyage insured;

2. The value of cargo is its actual cost to the insured, when

1386



Tit.XI,ch.II,art.IX.] ARRIVAL, DAMAGED. §§ 2742-2744

laden on board, or where that cost cannot be ascertained, its
market value at the time and place of lading, adding the
charges incurred in purchasing and placing it on board, but
without reference to any losses incurred in raising money for
its purchase, or to any drawback on its exportation or to the
fluctuations of the market at the port of destination, or to
expenses incurred on the way or on arrival;

3. The value of freightage is the gross freightage, exclusive
of primage, without reference to the cost of earning it; and,

4. The cost of insurance is in each case to be added to the
value thus estimated.

Hijstory: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to partial loss of ship one third new for old, see post
§ 2746.

§ 2742. ARRIVAL OF THING DAMAGED. If cargo insured
against partial loss arrives at the port of destination in a
damaged condition, the loss of the insured is deemed to be
the same proportion of the value which the market price at
that port, of the thing so damaged, bears to the market price
it would have brought if sound.

History: Enacted March 21, 1872,

§ 2743. LABOR A^D EXPENSES. A marine insurer is lia-
ble for all the expenses attendant upon a loss which forces
the ship into port to be repaired; and where it is agreed that
the insured may labor for the recovery of the property, the
insurer is liable for the expense incurred thereby, such expense,
in either case, being in addition to a total loss if that after-
wards occurs.

History: Enacted March 21, 1872.

§ 2744. GENERAL AVERAGE. A marine insurer is liable
for a loss falling upon the insured, through a contribution
In respect to the thing insured, required to be made by him

1387



§§2745,2746 CIVIL CODE. [Div.III.Pt.IV.

towards a general average loss called for by a peril insured
against.

History; Enacted March 21, 1872.

As to general average in general, see ante §§ 2152 et seq.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§2745. CONTWBUTION. Where a person insured by a
contract of marine insurance has a demand against others
for contribution, he may claim the whole loss from the in-
surer, subrogating him to his own right to contribution. But
no such claim can be made upon the insurer after the separa-
tion of the interests liable to contribution, nor when the
insured, having the right and opportunity to enforce contri-
bution from others, has neglected or waived the (the) exer-
cise of that right.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 259.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to subrogation of insurer, see ante § 2724.

§2746. ONE THIRD NEW FOR OLD. In the case of a
partial loss of a ship or its equipments, the old materials are
to be applied towards payment for the new, and whether the
ship is new or old, a marine insurer is liable for only two
thirds of the remaining cost of the repairs, except that he
must pay for anchors and cannon in full, and for sheathing
metal at a depreciation of only two and one half per cent for
each month that it has been fastened to the ship.

History: Enacted March 21, 1872.

As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

As to wrecked or damaged vessels, see Kerr's Pocket Pol. C.

§ 2507.



1388



Tit.XI.ch.III.] INCREASE OF RISK. §§ 2752, 2753



CHAPTER III.

FIRE INSURANCE.

§ 2752. False representations [repealed].

§ 2753. Alteration increasing risk.

§ 2754. Alteration not increasing risk.

§ 2755. Acts of the insured.

§ 2756. Measure of indemnity.

§ 2757. Value of interest in policy of insurance, how may be
fixed. Total or partial loss.

§2752. FALSE REPRESENTATIONS (repealed).

HLstory: Enacted March 21, 1872; repealed March 30, 1874',
Code Amdts. 1873-4, p. 259.

§2753. ALTER.VTION INCREASINO! RISK. An alteration
in the use or condition of a thing insured from that to which
it is limited by the policy, made without the consent of the
insurer, by means within the control of the insured, and
increasing the risk, entitles an insurer to rescind a contract
of fire insurance.

HiHtory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 25 pars, annotation.

122 C. 595, 599, 55 P. 417 (construed).

As to alienation and effect on insurance, see note § 2527,
ante.

As to assessments, see note § 2527, ante.

As to condition against keeping of petroleum or other in-
flammable fluids, when violated, see 37 A. R. 650.

As to explosion, liability of insurer of loss caused by; express
provisions against losses by explosions; insurance against ex-
plosions; marine policies, similar cases, see 19 L. 594.

As to fire insurance, see note § 2527, ante.

As to hazardous and prohibited articles kept in ordinary
course of business, see 24 A. R. 150.

As to Increase of risk, see note § 2527, ante.

As to Insurable Interest in life, see note § 2527. ante.

As to loss by lightning and insurance against loss by light-
ning, see 26 L. 267.

As to many miscellaneous matters as to Insurance, see notes
§§ 414, 2527, ante.

1389



§§ 2754, 2755 CIVIL CODE. [Div.III.Pt.IV.

As to meaning of "hazardous" and "extrahazardous," see 97
A. D. 798.

As to premiums, see note § 2527, ante.

As to respective rights of vendor and vendee, when part of
purchase price has been paid, see 84 A. D. 429.

As to rights of mortgagee to benefit of insurance taken in
name of mortgager, see 25 L. 305.

As to title, and effect of insurance, see note § 2527, ante.

As to what increase of hazard results in forfeiture of fire
policy, see 66 A. S. 691.

As to when alterations in premises avoid fire policy, see 26
A. S. 407.

As to when insurance against fire remains in force after re-
moval of property, see 33 A. R. 147.

As to when use or keeping of forbidden materials avoids fire
policy, see 24 A. R. 150.



§ 2754. ALTERATION NOT INCREASING RISK. An alter-
ation in the use or condition of a thing insured from that to
which it is limited by the policy, which does not increase the
risk, does not affect a contract of fire insurance.

History: Enacted March 21, 1872.

See 'Kerr's Cyc. C. C. for 5 pars, annotation.
122 C. 595, 597, 599 (referred to), 600 (construed), 55 P. 417.
As to many miscellaneous matters as to insurance, see notes
§§ 414, 2527, ante.

§ 2755. ACTS OF THE INSURED. A contract of fire insur-
ance is not affected by any act of the insured subsequent to
the execution of the policy, which does not violate its pro-
visions, even though it increases the risk and is the cause



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